<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
Keystone Automotive Industries, Inc.
------------------------------------
(Exact name of Registrant as specified in its charter)
California 95-2920557
---------- ----------
(State of incorporation or organization) (I.R.S. Employer I.D. No.)
700 East Bonita Avenue, Pomona, California 91767
-------------------------------------------------------------
(Address, including zip code, of principal executive offices)
Securities to be registered pursuant to Section 12(b) of the Act:
None
----
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, No Par Value
--------------------------
(Title of Class)
<PAGE>
Item 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
Incorporated by reference from pages 36-38 of the Preliminary
Prospectus dated May 30, 1996, contained in Registrant's Amendment
No. 1 to Registration Statement on Form S-1 (File No. 333-3994).
Item 2. EXHIBITS
The following exhibits are filed as a part of this Registration
Statement:
1. Specimen certificate for Registrant's Common Stock;
2.* Restated Articles of Incorporation, as currently in effect;
3.** Amended and Restated Bylaws, as currently in effect;
4. Form of Restated Articles of Incorporation to be in effect on or
after the date of effectiveness of the offering made under
Registration Statement No. 333-3994; and
5. Amended and Restated Bylaws to be in effect on or after the date
of effectiveness of the offering made under Registration
Statement No. 333-3994.
_______________________
* Incorporated by reference to Exhibit 3.1 to the Registrant's Registration
Statement on Form S-1 (File No. 333-3994) filed on April 18, 1996.
** Incorporated by reference to Exhibit 3.2 to the Registrant's Registration
Statement on Form S-1 (File No. 333-3994) filed on April 18, 1996.
<PAGE>
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the Registrant has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereto duly authorized.
Date: June 6, 1996
KEYSTONE AUTOMOTIVE INDUSTRIES, INC.
By /s/ Robert L. Blanton
--------------------------------
Robert L. Blanton
Vice President - Finance
<PAGE>
Index to Exhibits
Page No.
-------------
1. Specimen Certificate ......................................
2. Restated Articles of Incorporation ........................ Incorporated
By Reference
3. Amended and Restated Bylaws ............................... Incorporated
By Reference
4. Form of Restated Articles of Incorporation to be in effect
on or after the date of effectiveness of the offering
made under Registration Statement No. 333-3994 ............
5. Amended and Restated Bylaws to be in effect on or after
the date of effectiveness of the offering made under
Registration Statement No. 333-3994 .......................
6. Pages 36-38 of the Preliminary Prospectus dated
May 30, 1996, contained in the Registrant's
Amendment No. 1 to Registration Statement on
Form S-1 (File No. 333-3994)............................... Incorporated
By Reference
<PAGE>
<TABLE>
<S> <C> <C>
COMMON STOCK
NUMBER SHARES
LU
KEYSTONE AUTOMOTIVE INDUSTRIES, INC.
SEE REVERSE FOR STATEMENTS
RELATING TO RIGHTS, PREFERENCES,
PRIVILEGES AND RESTRICTIONS, IF ANY
CUSIP 49338N 10 9
INCORPORATED UNDER THE LAWS OF THE STATE OF CALIFORNIA
</TABLE>
This Certifies that
Is the record holder of
FULLY PAID AND NONASSESSABLE SHARES OF THE COMMON STOCK, NO PAR VALUE, OF
- - ------------------------KEYSTONE AUTOMOTIVE INDUSTRIES, INC.--------------------
transferable on the books of the Corporation by the holder hereof in person
or by duly authorized attorney upon surrender of this Certificate properly
endorsed. This Certificate is not valid until countersigned by the Transfer
Agent and registered by the Registrar.
WITNESS the seal of the Corporation and the signature of its duly
authorized officers.
Dated:
/s/ Al Ronco [SEAL] /s/ Charles J. Hogarty
SECRETARY PRESIDENT
COUNTERSIGNED AND REGISTERED:
U.S. STOCK TRANSFER CORPORATION
(GLENDALE, CA)
TRANSFER AGENT AND REGISTRAR
BY
AUTHORIZED SIGNATURE
<PAGE>
A statement of the rights, preferences, privileges and restrictions granted
to or imposed upon the respective classes or series of shares and upon the
holders thereof as established, from time to time, by the Articles of
Incorporation of the Corporation and by any certificate of determination, and
the number of shares constituting each class and series and the designations
thereof, may be obtained by the holder hereof upon written request and
without charge from the Secretary of the Corporation at its corporate
headquarters.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C>
TEN COM -- as tenants in common UNIF GIFT MIN ACT -- _____________Custodian____________
TEN ENT -- as tenants by the entireties (Cust) (Minor)
JT TEN -- as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act_______________________________
in common (State)
UNIF TRF MIN ACT -- ________Custodian (until age _____)
(Cust)
__________under Uniform Transfers
(Minor)
to Minors Act_____________________
(State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, ____________________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- - --------------------------------------
- - --------------------------------------
- - -------------------------------------------------------------------------------
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE OF ASSIGNEE)
- - -------------------------------------------------------------------------------
- - -------------------------------------------------------------------------------
- - ------------------------------------------------------------------------- Shares
of the common stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
- - ----------------------------------------------------------------------- Attorney
to transfer the said stock on the books of the within named Corporation
with full power of substitution in the premises.
Dated _______________________
X _____________________________________________
X _____________________________________________
NOTICE THE SIGNATURE(S) TO THIS ASSIGNMENT MUST
CORRESPOND WITH THE NAME(S) AS WRITTEN UPON
THE FACE OF THE CERTIFICATE IN EVERY
PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT
OR ANY CHANGE WHATEVER.
SIGNATURE(S) GUARANTEED
BY_____________________________________________________
THE SIGNATURES(S) SHOULD BE GUARANTEED BY AN ELIGIBLE
GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND
LOAN ASSOCATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN
APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT
TO S.E.C. RULE 17Ad 15.
<PAGE>
RESTATED ARTICLES OF INCORPORATION
OF
KEYSTONE AUTOMOTIVE INDUSTRIES, INC.
Virgil K. Benton II and Al A. Ronco certify that:
1. They are the Chairman of the Board and the Secretary,
respectively, of Keystone Automotive Industries, Inc., a California corporation
(the "Corporation").
2. The Articles of Incorporation of the Corporation are amended and
restated to read as set forth on Exhibit "A" attached hereto.
3. The amendment and restatement of the Articles of Incorporation
has been duly approved by the Board of Directors.
4. The amendment and restatement of the Articles of Incorporation
has been duly approved by the required vote of shareholders in accordance with
Section 902 of the California General Corporation Law ("California Law"). The
total number of outstanding shares of the Corporation is 5,800,000. The number
shares voting in favor of the amendment equaled or exceeded the vote required.
The percentage vote required was more than 50%.
We further declare under penalty of perjury under the laws of the
State of California that the matters set forth in this certificate are true and
correct of our own knowledge.
Executed at Los Angeles, California this thirty-first day of May,
1996.
/s/ Virgil K. Benton
__________________________________________
Virgil K. Benton II, Chairman of the Board
/s/ Al A. Ronco
__________________________________________
Al A. Ronco, Secretary
<PAGE>
RESTATED ARTICLES OF INCORPORATION
OF
KEYSTONE AUTOMOTIVE INDUSTRIES, INC.
ONE: The name of this corporation is Keystone Automotive
Industries, Inc.
TWO: The purpose of this corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of California other than the banking business, the trust company business or
the practice of a profession permitted to be incorporated by the California
Corporations Code.
THREE: This corporation is authorized to issue two classes of shares of
stock designated "Common Stock" and "Preferred Stock," respectively. The total
number of shares of stock which this corporation shall have authority to issue
is 23,000,000 shares, consisting of 20,000,000 shares of Common Stock and
3,000,000 shares of Preferred Stock.
A. COMMON STOCK
1. Except where otherwise provided by law, by these
Restated Articles of Incorporation, or by resolution of the Board of Directors
pursuant to this Article THREE, the holders of the Common Stock issued and
outstanding shall have and possess the exclusive right to notice of
shareholders' meetings and the exclusive voting rights and powers.
2. Subject to all of the rights of the Preferred Stock,
dividends may be paid on the Common Stock, as and when declared by the Board of
Directors, out of any funds of the corporation legally available for the payment
of such dividends.
B. PREFERRED STOCK
The Preferred Stock may be divided into such number of series as
the Board of Directors may determine. The Board of Directors is authorized to
determine and alter the rights, preferences, privileges and restrictions, or any
of them, granted to or imposed upon any wholly unissued series of Preferred
Stock and to fix the number of shares of any series of Preferred Stock and the
designation of any such series of Preferred Stock. The Board of Directors,
within the limits and restrictions stated in any resolution or resolutions of
the Board of Directors originally fixing the number of shares constituting any
series, may increase or decrease (but not below the number of shares of such
series then outstanding) the number of shares of any series subsequent to the
issue of shares of that series.
1
<PAGE>
FOUR: A. This Article FOUR shall become effective only when this
corporation becomes a listed corporation within the meaning of Section 301.5 of
the California General Corporations Law ("California Law"), which section
provides that a listed corporation means a corporation with outstanding shares
listed on the New York Stock Exchange or the American Stock Exchange, or a
corporation with outstanding securities designated as qualified for trading as a
national market system security on the National Association of Securities
Dealers Automatic Quotation System (or any successor national market system) if
the corporation has at least 800 holders of its equity securities as of the
record date of the corporation's most recent annual meeting of shareholders.
B. Upon the effectiveness of this Article FOUR, the Board of
Directors shall be classified into three classes, as nearly equal in numbers as
the then total number of directors constituting the entire Board of Directors
permits, the members of each class to serve for a term of three years. If the
number of directors is not divisible by three, the first extra director shall be
assigned to the first class of directors and any additional director shall be
assigned to the second class of directors.
C. Upon the effectiveness of this Article FOUR, the election of
directors by the shareholders shall not be by cumulative voting. At each
election of directors, each shareholder entitled to vote may vote all the shares
held by that shareholder for each of several nominees for director up to the
number of directors to be elected. The shareholder may not cast more votes for
any single nominee than the number of shares held by the shareholder.
D. At the first annual meeting of shareholders held after the
effectiveness of this Article FOUR, directors of the first class shall be
elected to hold office for a term expiring at the next succeeding annual meeting
of shareholders, directors of the second class shall be elected to hold office
for a term expiring at the second succeeding annual meeting of shareholders and
directors of the third class shall be elected to hold office for a term expiring
at the third succeeding annual meeting of shareholders. At each subsequent
annual meeting of shareholders, the successors to the class of directors whose
term shall then expire shall be elected to hold office for a term expiring at
the third succeeding annual meeting of shareholders.
E. If at any time this corporation ceases to be a listed
corporation as defined in Section 301.5 of the California Law, at each
succeeding annual meeting of shareholders where the existing term of a class of
directors is expiring, the directors of each such class shall then be elected
for a term expiring in one year until all directors are elected for one year
terms. The election of all directors at the annual meeting of shareholders for
a term of one year shall continue until the corporation once again qualifies as
a listed corporation within the meaning of Section 301.5 of the California Law,
and the foregoing provisions of this Article FOUR shall be reinstated.
FIVE: The following provisions are inserted for the management of the
business and for the conduct of the affairs of the corporation and for defining
and regulating the powers of the
2
<PAGE>
corporation and its directors and shareholders and are in furtherance and not in
limitation of the powers conferred upon the corporation by statute:
(a) Approval by the holders of at least two-thirds of the outstanding
shares of the capital stock of this corporation entitled to vote (including the
affirmative vote of at least two-thirds of the outstanding shares of any class
or series of the capital stock entitled to vote separately) shall be required
with respect to each of the following actions:
A. Any amendment to or the elimination of Articles FOUR, FIVE,
SIX or SEVEN of these Restated Articles of Incorporation.
B. Any amendment to or the elimination of any provision of the
Bylaws of this corporation which requires approval by the shareholders to become
effective.
C. The removal of any director or directors without cause;
provided, however, that if any director, who is also an executive officer of
this corporation, ceases to be an executive officer, such person may be removed
as a director without cause by the affirmative vote of at least a majority of
the directors (excluding the director to be so removed).
(b) Notwithstanding anything to the contrary in these Restated
Articles of Incorporation or the Bylaws of this corporation, (A) vacancies and
newly created directorships, whether resulting from an increase in the size of
the Board of Directors, from the death, resignation, disqualification or removal
of a director or otherwise, shall be filled solely by the affirmative vote of at
least two-thirds of the remaining directors then in office, or by the sole
remaining director, even though less than a quorum of the Board of Directors,
(B) any director elected in accordance with clause (A) of this paragraph (b)
shall hold office for the remainder of the full term of the class of directors
in which the vacancy occurred or the new directorship was created and until such
director's successor shall have been elected and qualified, (C) shareholders may
effect the removal of any director or directors with or without cause, provided
that (i) any such removal for cause shall require the affirmative vote of at
least a majority of the outstanding shares of the capital stock of the
corporation entitled to vote in the election of directors and (ii) any such
removal without cause shall required the affirmative vote of at least two-thirds
of the outstanding shares of the capital stock of the corporation entitled to
vote in the election of the directors, and (D) the Board of Directors may effect
the removal of any director (i) for cause, by the affirmative vote of at least
two-thirds of the directors (excluding the director to be so removed), (ii) or
who is also an officer of the corporation, in the event that such director
retires, resigns or otherwise ceases to be employed (by termination or
otherwise) by the corporation as an officer, by the affirmative vote of at least
a majority of the directors (excluding the director to be so removed).
SIX: No action required to be taken or which may be taken at any
annual or special meeting of shareholders of the corporation may be taken by
written consent of shareholders, unless a consent or consents in writing,
setting forth the action so taken, is or are signed by the holders of
3
<PAGE>
at least two-thirds of the outstanding shares of the capital stock of the
corporation entitled to vote thereon.
SEVEN: The liability of the directors of this corporation for monetary
damages shall be eliminated to the fullest extent permissible under California
law. This corporation is authorized to provide indemnification of agents (as
defined in Section 317 of the California Law) through bylaw provisions,
agreements with agents, vote of shareholders or disinterested directors or
otherwise, in excess of the indemnification otherwise permitted by Section 317
of the California Law, subject only to the applicable limits set forth in
Section 204 of the California Law with respect to actions for breach of duty to
the corporation and its shareholders. This corporation is authorized to
purchase and maintain insurance on behalf of its agents against any liability
asserted against or incurred by the agent in such capacity or arising out of the
agent's status as such from a company, the shares of which are owned in whole or
in part by this corporation, provided that any policy issued by such company is
limited to the extent required by applicable law. Any repeal or modification of
the foregoing provisions of this Article SEVEN by the shareholders of this
corporation shall not adversely affect any right or protection of an agent of
this corporation existing at the time of that repeal or modification.
EIGHT: This corporation elects to be governed by all of the provisions
of the General Corporation Law of 1977 not otherwise applicable to it under
Chapter 23 thereof.
4
<PAGE>
AMENDED AND RESTATED BYLAWS
OF
KEYSTONE AUTOMOTIVE INDUSTRIES, INC.,
a California corporation
Adopted on April 17, 1996
ARTICLE I
OFFICES
Section 1.1 PRINCIPAL EXECUTIVE OFFICE. The principal executive
office of the corporation is hereby fixed and located at 700 East Bonita Avenue,
Pomona, California 91767. The Board of Directors is hereby granted full power
and authority to change said principal executive office from one location to
another.
Section 1.2 OTHER OFFICES. Other business offices may at any time be
established by the Board of Directors at any place or places where the
corporation is qualified to do business.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 2.1 PLACE OF MEETINGS. All meetings of shareholders shall be
held at the principal executive office of the corporation or at any other place
within or outside the State of California as may be designated by the Board of
Directors.
Section 2.2 ANNUAL MEETINGS.
(a) TIME AND PLACE. The annual meeting of shareholders shall be
held each year on a date and at a time designated by the Board of Directors.
The date so designated for the initial meeting shall be within fifteen (15)
months after the organization of the corporation, and the date so designated for
each subsequent meeting shall be within fifteen (15) months after the last
annual meeting.
(b) BUSINESS TO BE TRANSACTED. At the annual meetings,
directors shall be elected, reports of the affairs of the corporation shall be
considered, and any other business may be transacted which is within the powers
of the shareholders.
(c) NOTICE, MEANS. Written notice of each annual meeting shall
be given to each shareholder entitled to vote, either personally or by mail or
other means of written communication, charges prepaid, addressed to such
shareholder at his address appearing on the books of the corporation or given by
him to the corporation for the purpose of notice. If any
1
<PAGE>
notice or report addressed to the shareholder at the address of such
shareholder appearing on the books of the corporation is returned to the
corporation by the United States Postal Service marked to indicate that the
United States Postal Service is unable to deliver the notice or report to the
shareholder at such address, all future notices or reports shall be deemed to
have been duly given without further mailing if the same shall be available
for the shareholder upon written demand of the shareholder at the principal
executive office of the corporation for a period of one year from the date of
the giving of the notice or report to all other shareholders. If a
shareholder gives no address, notice shall be deemed to have been given him if
sent by mail or other means of written communication addressed to the place
where the principal executive office of the corporation is situated, or if
published at least once in some newspaper of general circulation in the county
in which said principal executive office is located.
An affidavit of the mailing or other means of giving any notice of any
shareholders' meeting shall be executed by the Secretary, any Assistant
Secretary or any transfer agent of the corporation giving the notice, and shall
be filed and maintained in the minute book of the corporation. Such affidavit
shall be prima facie evidence of the giving of such notice.
(d) NOTICE, TIME AND CONTENT. All such notices shall be given
to each shareholder entitled thereto not less than ten (10) days nor more than
sixty (60) days before each annual meeting. Any such notice shall be deemed to
have been given at the time when delivered personally or deposited in the mail
or sent by other means of written communication.
Such notices shall specify:
(i) the place, the date, and the hour of such meeting;
(ii) those matters which the Board of Directors, at the time
of the mailing of the notice, intends to present for action by the shareholders;
(iii) if directors are to be elected, the names of nominees
intended at the time of the notice to be presented by management for election;
(iv) the general nature of a proposal, if any, to take
action with respect to approval of, (a) a contract or other transaction with an
interested director, (b) amendment of the articles of incorporation, (c) a
reorganization of the corporation as defined in Section 181 of the General
Corporation Law, (d) voluntary dissolution of the corporation, or (e) a
distribution in dissolution other than in accordance with the rights of
outstanding preferred shares, if any; and,
(v) such other matters, if any, as may be expressly required
by statute.
Section 2.3 SPECIAL MEETINGS.
(a) CALLING OF. Special meetings of the shareholders, for the
purpose of taking any action permitted by the shareholders under the General
Corporation Law and the
2
<PAGE>
Articles of Incorporation of this corporation, may be called at any time by the
Board of Directors, the Chairman of the Board, the President or by one or more
shareholders holding not less than ten percent (10%) of the votes at the
meeting. A shareholder entitled to call a special meeting of shareholders for
any proper purpose shall submit a request therefor in writing directed to the
Chairman of the Board, the Chief Executive Officer, any Vice President or the
Secretary.
(b) TIME AND NOTICE OF. Upon receipt of such request, the
corporation forthwith shall cause notice to be given to shareholders entitled to
vote that a meeting will be held at a time requested by the person or persons
calling the meeting, which time shall be not less than thirty-five (35) nor more
than sixty (60) days after receipt of the request. If such notice is not given
within twenty (20) days after receipt of such request, the persons calling for
the meeting may give notice thereof in the manner provided by these Bylaws.
Except in special cases where other express provision is made by statute, notice
of such special meetings shall be given in the same manner as for annual
meetings of shareholders. In addition to the matters required by items (i) and,
if applicable (iii) of Section 2.2(d), notice of any special meeting shall
specify the general nature of the business to be transacted, and no other
business may be transacted at such meeting.
Section 2.4 QUORUM. A majority of the shares entitled to vote,
represented in person or by proxy, shall constitute a quorum for the transaction
of business at a meeting of shareholders. The shareholders present at a duly
called or held meeting at which a quorum is present may continue to do business
until adjournment, notwithstanding the withdrawal of enough shareholders to
leave less than a quorum, if any action taken (other than adjournment) is
approved by at least a majority of the shares required to constitute a quorum.
Section 2.5 ADJOURNED MEETING AND NOTICE THEREOF. Any shareholders'
meeting, annual or special, whether or not a quorum is present, may be adjourned
from time to time by the vote of a majority of the shares, the holders of which
are either present in person or represented by proxy thereat. When any meeting
of shareholders is adjourned to another time or place, written notice need not
be given of the adjourned meeting if the time and place are announced at a
meeting at which the adjournment is taken, unless a new record date for the
adjourned meeting is fixed, or unless the adjournment is for more than forty-
five (45) days in which case the Board of Directors shall set a new record date.
For any adjourned meeting requiring notice, such notice shall be given to each
shareholder of record entitled to vote at the adjourned meeting in accordance
with the provisions of Sections 2.2 and 2.3. At any adjourned meeting the
corporation may transact any business which might have been transacted at the
original meeting.
Section 2.6 VOTING.
(a) RECORD DATE. Unless a record date for voting purposes be
fixed as provided in Section 5.1 of Article V of these Bylaws then, subject to
the provisions of Sections 702 and 704 of the General Corporation Law of
California (relating to voting of shares held by a fiduciary, in the name of a
corporation, or in joint ownership), only persons in whose names shares entitled
to vote standing on the stock records of the corporation at the close of
3
<PAGE>
business on the business day next preceding the day on which notice of the
meeting is given or if such notice is waived, at the close of business on the
business day next preceding the day on which the meeting of shareholders is
held, shall be entitled to vote at such meeting, and such day shall be the
record date for such meeting.
(b) BALLOT. The shareholders' vote may be oral or by ballot;
provided, however, all elections for directors must be by ballot if demand for
election by ballot is made by a shareholder at the meeting and before the voting
begins. If a quorum is present, except with respect to election of directors,
the affirmative vote of the majority of the shares represented at the meeting
and entitled to vote on any matter shall be the act of the shareholders, unless
the vote of a greater number or voting by classes is required by the General
Corporation Law of California or the Restated Articles of Incorporation or
Bylaws of the corporation.
(c) VOTING. Except as otherwise provided in the Restated
Articles of Incorporation or as set forth in this paragraph (c), each
outstanding share of the capital stock of the corporation, regardless of class,
shall be entitled to one vote on each matter submitted to a vote of
shareholders. Except as otherwise provided in Article FOUR of the Restated
Articles of Incorporation and Article III, Section 3.4, below, at any election
of directors, every shareholder complying with this paragraph (c) and entitled
to vote may cumulate his or her votes and give one candidate a number of votes
equal to the number of directors to be elected multiplied by the number of votes
to which the shareholder's shares are entitled, or distribute the shareholder's
votes on the same principal among as many candidates as the shareholder thinks
fit. No shareholder shall be entitled to cumulate votes (I.E., cast for any one
or more candidates a number of votes greater than the number of the
shareholder's shares) unless the candidates' names have been properly placed in
nomination prior to commencement of the voting and a shareholder has given
notice prior to commencement of the voting of the shareholder's intention to
cumulate votes. If any shareholder has given such a notice, then every
shareholder entitled to vote may cumulate votes for candidates in nomination.
The candidates receiving the highest number of votes, up to the number of
directors to be elected, shall be elected.
Section 2.7 VALIDATION OF DEFECTIVELY CALLED OR NOTICED MEETINGS.
The transactions of any meeting of shareholders, either annual or special,
however called and noticed, and wherever held, shall be as valid as though had
at a meeting duly held after regular call and notice, if a quorum be present
either in person or by proxy, and if, either before or after the meeting, each
of the persons entitled to vote, who was not present in person or by proxy,
signs a written waiver of notice or a consent to a holding of the meeting, or an
approval of the minutes. The waiver of notice or consent need not specify
either the business to be transacted or the purpose of any annual or special
meeting of shareholders, except that if action is taken or proposed to be taken
for approval of any of those matters specified in Section 2.2(d)(iv) of
Article II, the waiver of notice or consent shall state the general nature of
the proposal. All such waivers, consents or approvals shall be filed with the
corporate records or made a part of the minutes of the meeting.
Attendance by a person at a meeting shall also constitute a waiver of
notice of that meeting, except when the person objects, at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully
called or convened, and except that attendance
4
<PAGE>
at a meeting is not a waiver of any right to object to the consideration of
matters required by the General Corporation Law of the State of California to be
included in the notice but not so included, if such objection is expressly made
at the meeting.
Section 2.8 ACTION WITHOUT MEETING.
(a) ACTION BY WRITTEN CONSENT AND NOTICE THEREOF. Any action
which may be taken at any annual or special meeting of shareholders, including
the election of directors, may be taken without a meeting and without prior
notice if a consent in writing, setting forth the action so taken, is signed by
the holders of at least two-thirds of the outstanding shares entitled to vote on
that action. If the consents of all shareholders entitled to vote have been
solicited in writing, and if the unanimous written consents of all shareholders
have not been obtained, notice shall be given as provided herein.
(i) Notice shall be given of any proposed shareholder
approval of, (a) a contract or other transaction with an interested director,
(b) indemnification of an agent of the corporation as authorized by Section 3.16
of Article III of these Bylaws, (c) a reorganization of the corporation as
defined in Section 181 of the General Corporation Law of California, or (d) a
distribution in dissolution other than in accordance with the rights of
outstanding preferred shares, if any. The notice referred to herein shall be
given at least ten (10) days before the consummation of the action authorized by
such approval.
(ii) Prompt notice of the taking of any other corporate
action shall be given to those shareholders entitled to vote who have not
consented in writing. Such notices shall be given in the manner and shall be
deemed to have been given as provided in Section 2.2 of Article II of these
Bylaws.
(b) FILING OF CONSENTS; RECORD DATE. All written consents of
the shareholders shall be filed with the Secretary of the corporation. Unless,
as provided in Section 5.1 of Article V of these Bylaws, the Board of Directors
has fixed a record date for the determination of shareholders entitled to notice
of and to give such written consent, the record date for such determination
shall be the day on which the first written consent is given.
(c) REVOCATION OF CONSENT. Any shareholder giving a written
consent, or the shareholder's proxyholders, or a transferee of the shares of a
personal representative of the shareholder or his respective proxyholders, may
revoke the consent by a writing received by the corporation prior to the time
that written consents of the number of shares required to authorize the proposed
action have been filed with the Secretary of the corporation, but may not do so
thereafter. Such revocation shall be effective upon its receipt by the
Secretary of the corporation.
Any action by the shareholders with respect to any amendment to
or the elimination of this Article II, Section 2.8, shall require approval by
the holders of two-thirds of the outstanding shares of the corporation.
5
<PAGE>
Section 2.9 PROXIES. Every person entitled to vote or execute
consents shall have the right to do so either in person or by one or more agents
authorized by a written proxy executed by such person or his duly authorized
agent and filed with the Secretary of the corporation. Any proxy duly executed
is not revoked and continues in full force and effect until (i) an instrument
revoking it or a duly executed proxy bearing a later date is filed with the
Secretary of the corporation prior to the vote pursuant thereto, (ii) the person
executing the proxy attends the meeting and votes in person, or (iii) written
notice of the death or incapacity of the maker of such proxy is received by the
corporation before said proxy is voted and counted. In the determination of the
validity and effect of proxies, the dates contained on the forms of proxy shall
presumptively determine the order of execution of the proxies, regardless of the
postmark dates on the envelopes in which they are mailed. Unless otherwise
provided in the proxy, no proxy shall be valid after the expiration of
eleven (11) months from the date of such proxy.
Section 2.10 INSPECTORS OF ELECTION.
(a) APPOINTMENT AND NUMBER. In advance of any meeting of
shareholders, the Board of Directors may appoint any persons, other than
nominees for office, as inspectors of election to act at such meeting or any
adjournment thereof. If inspectors of election are not so appointed, or if any
person so appointed fails to appear or refuses to act, the chairman of any such
meeting may, and on the request of any shareholder or his proxy shall, appoint
inspectors of election (or persons to replace those who so fail or refuse) at
the meeting. The number of inspectors shall be either one (1) or three (3). If
appointed at a meeting on the request of one or more shareholders or proxies,
the majority of shares represented in person or by proxy shall determine whether
one (1) or three (3) inspectors are to be appointed.
(b) DUTIES. The duties of such inspectors shall be as
prescribed by Section 707 of the General Corporation Law of California and shall
include: determining the number of shares outstanding and the voting power of
each, the shares represented at the meeting, the existence of a quorum, the
authenticity, validity and effect of proxies; receiving votes, ballots or
consents; hearing and determining all challenges and questions in any way
arising in connection with the right to vote; counting and tabulating all votes
or consents; determining when the polls shall close; determining the result; and
such acts as may be proper to conduct the election or vote with fairness to all
shareholders. The inspectors of election shall perform their duties
impartially, in good faith, to the best of their ability and as expeditiously as
is practical. If there are three (3) inspectors of election, the decision, act
or certificate of a majority is effective in all respects as the decision, act
or certificate of all. Any report or certificate made by the inspectors of
election is PRIMA FACIE evidence of the facts stated therein.
Section 2.11 NOMINATIONS FOR DIRECTOR; SHAREHOLDER PROPOSALS.
(a) NOMINATION OF DIRECTORS. Nominations for election of
members of the Board of Directors may be made by the Board of Directors or by
any shareholder of any outstanding class of voting stock of the corporation
entitled to vote for the election of directors in accordance with this Section
2.11.
6
<PAGE>
(b) OTHER PROPOSALS. Any shareholder of the corporation
entitled to vote at any annual or special meeting of shareholders may make
nominations for the election of directors and other proposals for inclusion on
the agenda of any such meeting provided such shareholder complies with the
timely notice provisions set forth in this Section 2.11 (as well as any
additional requirements under any applicable law or regulation).
(c) TIMELY NOTICE BY SHAREHOLDERS. A shareholder's notice shall
be delivered to or mailed and received at the principal executive offices of the
corporation (i) in the case of any special meeting and of the first annual
meeting held after the effective date of these Bylaws, not less than thirty (30)
days nor more than sixty (60) days prior to the meeting date specified in the
notice of such meeting; PROVIDED, however, that if less than forty (40) days'
notice or prior public disclosure of the date of such meeting is given or made
to shareholders, notice by shareholder to be timely must be so received not
later than the close of business on the tenth day following the day on which
such notice of the date of such meeting was mailed or such public disclosure was
made, and (ii) in the case of any subsequent annual meeting, not less than
ninety (90) days prior to the day and month on which, in the immediately
preceding year, the annual meeting for such year had been held. Such
shareholder's notice shall set forth (A) as to each person whom the shareholder
proposes to nominate for election or re-election as a director, (i) the name,
age, business address and residence address of such person, (ii) the principal
occupation or employment of such person, the class and number of shares of the
corporation which are beneficially owned by such person that are required to be
disclosed in solicitations of the proxies with respect to nominees for election
as directors, pursuant to Regulation 14A under the Securities Exchange Act of
1934, as amended (including, without limitation, such person's written consent
to being named in the proxy statement as a nominee and to serving as a
directors, if elected); (B) as to each action item required to be included on
the agenda, a description, in sufficient detail, of the purpose and effect of
the proposal to the extent necessary to properly inform all shareholders
entitled to vote thereon prior to any such vote; and (C) as to the shareholder
giving the notice, (i) the name and address, as they appear on the corporation's
books, of such shareholder and the class and (ii) number of shares of the
corporation which are beneficially owned by such shareholder.
(d) FAILURE TO PROVIDE TIMELY NOTICE, ETC.. No person nominated
by a shareholder shall be elected as a director of the corporation unless
nominated in accordance with the procedures set forth in this Section 2.11. The
Chairman of the meeting shall, if the facts warrant, determine and declare to
the meeting that a nomination or other proposal by a shareholder was not
properly brought before the meeting, and, if the Chairman shall so determine, he
shall so declare to the meeting and such nomination or other proposal shall be
disregarded.
ARTICLE III
DIRECTORS
Section 3.1 POWERS. Subject to any limitations of the Articles of
Incorporation and of these Bylaws and of the General Corporation Law of
California requiring shareholder authorization or approval for a particular
action, the business and affairs of the corporation shall
7
<PAGE>
be managed and all corporate powers shall be exercised by or under the direction
of the Board of Directors. The Board of Directors may delegate the management
of the day-to-day operation of the business of the corporation to a management
company or other person, provided that the business and affairs of the
corporation shall be managed and all corporate powers shall be exercised, under
the ultimate direction of the Board of Directors.
Section 3.2 COMMITTEES. By resolution adopted by a majority of the
authorized number of directors, the Board of Directors may designate an
executive and other committees, each consisting of two or more directors, to
serve at the pleasure of the Board of Directors. The provisions of this
Article apply to committees of the Board of Directors and action by such
committees, with such changes in the language of those provisions as are
necessary to substitute the committee and its members for the Board of Directors
and its members. The Board of Directors may designate one or more directors as
alternate members of any committee, who may replace any absent member at any
meeting of the committee. The appointment of members or alternate members of a
committee shall be made by the vote of a majority of the authorized number of
directors. Unless the Board of Directors shall otherwise prescribe the manner
of proceedings of any such committee, meetings of such committee may be
regularly scheduled in advance and may be called at any time by any two members
thereof; otherwise, the provisions of these Bylaws with respect to notice and
conduct of meetings of the Board of Directors shall govern. Any such committee,
to the extent provided in a resolution of the Board of Directors, shall have all
of the authority of the Board of Directors, except with respect to:
(i) the approval of any action for which the General
Corporation Law of California or the Articles of Incorporation also require
shareholder approval;
(ii) the filling of vacancies on the Board of Directors or
in any committee;
(iii) the fixing of compensation of the directors for
serving on the Board of Directors or on any committee;
(iv) the adoption, amendment or repeal of these Bylaws;
(v) the amendment or repeal of any resolution of the Board
of Directors which by its express terms is not so amendable or repealable;
(vi) any distribution to the shareholders, except at a rate
or in a periodic amount or within a price range determined by the Board of
Directors; and
(vii) the appointment of other committees of the Board of
Directors or the members thereof.
8
<PAGE>
Section 3.3 NUMBER OF DIRECTORS.
(a) The authorized number of directors shall be not less
than five nor more than nine. The exact number of directors shall be fixed from
time to time, within the limits specified in this subsection, by an amendment of
subsection (b) of this section adopted by the Board of Directors.
(b) The exact number of directors shall be five until changed as
provided in subsection (a) of this section.
(c) The maximum or minimum authorized number of directors may
only be changed by an amendment of this section approved by the vote or written
consent of a majority of the outstanding shares entitled to vote; provided,
however, that an amendment reducing the minimum number to a number less than
five shall not be adopted if the votes cast against its adoption at a meeting
(or the shares not consenting in the case of action by written consent) exceed
16-2/3% of such outstanding shares; and provided further, that in no case shall
the stated maximum authorized number of directors exceed two times the stated
minimum number of authorized directors minus one.
Section 3.4 ELECTION AND TERM OF OFFICE.
(a) Except as expressly set forth in this Section 3.4, (i) the
directors shall be elected at each annual meeting of shareholders but, if any
such annual meeting is not held or the directors are not elected thereat, the
directors may be elected at any special meeting of shareholders held for that
purpose and (ii) each director, including a director elected to fill a vacancy,
shall hold office until the next annual meeting of the shareholders and until
his successor is elected and qualified.
(b) Upon the effectiveness of Article FOUR of the corporation's
Restated Articles of Incorporation, the Board of Directors shall be classified
into three classes as nearly equal in numbers as the then total number of
directors constituting the entire Board of Directors permits, the members of
each class to serve for a term of three years. If the number of directors is
not divisible by three, the first extra director shall be assigned one to the
first class of directors and any additional director shall be assigned to the
second class of directors.
(c) Upon the effectiveness of Article FOUR of the Restated
Articles of Incorporation, the election of directors by the shareholders shall
not be by cumulative voting. At each election of directors, each shareholder
entitled to vote may vote all the shares held by that shareholder for each of
several nominees for director up to the number of directors to be elected. The
shareholder may not cast more votes for any single nominee than the number of
shares held by that shareholder.
(d) At the first annual meeting of shareholders held after the
effectiveness of Article FOUR of the Restated Articles of Incorporation,
directors of the first class shall be elected to hold office for a term expiring
at the next succeeding annual meeting of shareholders, directors of the second
class shall be elected to hold office for a term expiring
9
<PAGE>
at the second succeeding annual meeting of shareholders and directors of the
third class shall be elected to hold office for a term expiring at the third
succeeding annual meeting of shareholders. At each subsequent annual meeting of
shareholders, the successors to the class of directors whose term shall then
expire shall be elected to hold office for a term expiring at the third
succeeding annual meeting of shareholders.
(e) If at any time the corporation ceases to be a listed
corporation as defined in Section 301.5 of the California Law, at each
succeeding annual meeting of shareholders where the existing term of a class of
directors is expiring, the directors of each such class shall then be elected
for a term expiring in one year until all directors are elected for one year
terms. The election of all directors at the annul meeting of shareholders for a
term of one year shall continue until the corporation once again qualifies as
listed corporation within the meaning of Section 301.5 of the California Law,
and the foregoing provisions of Article FOUR of the Restated Articles of
Incorporation can be reinstated.
(f) Any action by the shareholders with respect to any amendment
to or the elimination of all or any part of this Article III, Section 3.4, shall
require approval by the holders of at least two-thirds of the outstanding shares
of the corporation.
Section 3.5 VACANCIES.
(a) WHEN A VACANCY EXISTS. A vacancy in the Board of Directors
exists whenever any authorized position of director is not then filled by a duly
elected director, whether caused by death, resignation, removal, change in the
authorized number of directors or otherwise.
(b) FILLING OF VACANCIES. Vacancies in the Board of Directors
and newly created directorships, whether resulting from an increase in the size
of the Board of Directors, the death, resignation, disqualification or removal
of a director or otherwise, shall be filled solely by the affirmative vote of
two-thirds of the remaining directors, though less than a quorum, or by a sole
remaining director and each director so elected shall hold office for the
remainder of the full term of the class of directors in which the vacancy
occurred or the new directorship was created and until his successor is elected
and qualified.
(c) REMOVAL BY SHAREHOLDERS. The shareholders may effect the
removal of any director or directors with or without cause, provided that any
such removal for cause shall require the affirmative vote of at least a majority
of the outstanding shares of the capital stock of the corporation entitled to
vote in the election of directors and any such removal without cause shall
require the affirmative vote of at least two-thirds of the outstanding shares of
the capital stock of the corporation entitled to vote in the election of
directors.
(d) REMOVAL BY DIRECTORS. The Board of Directors may effect the
removal of any director (i) for cause, by the affirmative vote of at least two-
thirds of the directors (excluding the director to be so removed), or (ii) who
is also an officer of the corporation, in the event that such director retires,
resigns or otherwise ceases to be employed
10
<PAGE>
(by termination or otherwise) by the corporation as an officer, by the
affirmative vote of at least a majority of the directors (excluding the director
to be so removed).
(e) RESIGNATION. Any director may resign effective upon giving
written notice to the Chairman of the Board, the President, the Secretary or the
Board of Directors of the corporation, unless the notice specifies a later time
for the effectiveness of such resignation. If the resignation is effective at a
future time, a successor may be elected to take office when the resignation
becomes effective.
(f) WHEN REDUCTION IN NUMBER EFFECTIVE. No reduction of the
authorized number of directors shall have the effect of removing any director
prior to the expiration of his term of office.
Any action by the shareholders with respect to any amendment to
or the elimination of this Article III, Section 3.5, shall require approval by
the holders of at least two-thirds of the outstanding shares of the corporation.
Section 3.6 PLACE OF MEETING. Regular meetings of the Board of
Directors shall be held at any place within or without the State of California
which has been designated from time to time by resolution of the Board of
Directors. In the absence of such designation, regular meetings shall be held
at the principal executive office of the corporation. Special meetings of the
Board of Directors may be held either at a place so designated or at the
principal executive office.
Section 3.7 ANNUAL MEETING. Immediately following each annual
meeting of shareholders the Board of Directors shall hold a regular meeting at
the place of said annual meeting or at such other place as shall be fixed by the
Board of Directors, for the purpose of organization, election of officers, and
the transaction of other business. Call and notice of such meetings are hereby
dispensed with.
Section 3.8 OTHER REGULAR MEETINGS. Other regular meetings of the
Board of Directors shall be held at such day and hour as shall be fixed from
time to time by the Board of Directors by resolution or in the Bylaws. If such
day falls upon a legal holiday, then said meeting shall be held at the same time
on the next day thereafter ensuing which is a full business day. Notice of all
such regular meetings of the Board of Directors is hereby dispensed with.
Section 3.9 SPECIAL MEETINGS. Special meetings of the Board of
Directors for any purpose or purposes shall be called at any time by the
Chairman of the Board, the President, any Vice President, the Secretary or by
any two directors. Written notice of the time and place of special meetings
shall be delivered personally to each director or communicated to each director
by telephone, or by telegraph or mail, charges prepaid, addressed to him at his
address as it is shown upon the records of the corporation or, if it is not so
shown on such records or if not readily ascertainable, at the place at which the
meetings of the directors are regularly held. In case such notice is mailed or
telegraphed, it shall be deposited in the United States mail or delivered to the
telegraph company in the place in which the principal executive
11
<PAGE>
offices of the corporation are located at least four (4) days prior to the time
of the holding of the meeting. In case such notice is delivered, personally or
by telephone, as above provided, it shall be so delivered at least forty-
eight (48) hours prior to the time of the holding of the meeting. Such mailing,
telegraphing or delivery, personally or by telephone, as above provided, shall
be due, legal and personal notice to such director. Any notice shall state the
date, place and hour of the meeting.
Section 3.10 ACTION WITHOUT MEETING. Any action by the Board of
Directors may be taken without a meeting if all members of the Board of
Directors shall individually or collectively consent in writing to such action.
Such written consent or consents shall be filed with the minutes of the
proceedings of the Board of Directors and shall have the same force and effect
as a unanimous vote of such directors.
Section 3.11 ACTION AT A MEETING; QUORUM AND REQUIRED VOTE.
Presence of a majority of the authorized number of directors at a meeting of the
Board of Directors constitutes a quorum for the transaction of business.
Members of the Board of Directors may participate in a meeting through use of
conference telephone or similar communications equipment, so long as all members
participating in such meeting can hear one another. Participation in a meeting
as permitted in the preceding sentence constitutes presence in person at such
meeting. Every act or decision done or made by a majority of the directors
present at a meeting duly held at which a quorum is present shall be regarded as
the act of the Board of Directors, unless a greater number, or the same number
after disqualifying one or more directors from voting, is required by law, by
the Articles of Incorporation, or by these Bylaws. A meeting at which a quorum
is initially present may continue to transact business notwithstanding the
withdrawal of a director, provided that any action taken is approved by at least
a majority of the required quorum for such meeting.
Section 3.12 VALIDATION OF DEFECTIVELY CALLED OR NOTICED MEETINGS.
The transactions of any meeting of the Board of Directors, however called and
noticed or wherever held, shall be as valid as though had at a meeting duly held
after regular call and notice, if a quorum is present and if, either before or
after the meeting, each of the directors who was not present signs a written
waiver of notice or a consent to holding such meeting or an approval of the
minutes thereof. All such waivers, consents or approvals shall be filed with
the corporate records or made a part of the minutes of the meeting.
Section 3.13 WAIVER OF NOTICE BY ATTENDANCE. Attendance of a
director at any meeting shall constitute a waiver of notice of such meeting,
unless a director attends for the express purpose of objecting to the
transaction of any business because the meeting is not lawfully called, noticed,
or convened.
Section 3.14 ADJOURNMENT. A majority of the directors present,
whether or not a quorum is present, may adjourn any meeting to another time and
place. If the meeting is adjourned for more than 24 hours, written notice of
any adjournment to another time or place shall be given prior to the time of the
adjourned meeting to the directors who were not present at the time of the
adjournment.
12
<PAGE>
Section 3.15 FEES AND COMPENSATION. Directors and members of
committees may receive such compensation, if any, for their services, and such
reimbursement for expenses, as may be fixed or determined by resolution of the
Board of Directors.
Section 3.16 INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES, AND
OTHER AGENTS.
(a) The corporation shall, to the maximum extent and in the
manner permitted by the California Corporations Code ("Code"), indemnify each of
its directors against expenses (as defined in Section 317(a) of the Code),
judgments, fines, settlements, and other amounts actually and reasonably
incurred in connection with any proceeding (as defined in Section 317(a) of the
Code), arising by reason of the fact that such person is or was an agent of the
corporation. For purposes of this Section 3.16, a "director" of the corporation
includes any person (i) who is or was a director of the corporation, (ii) who is
or was serving at the request of the corporation as a director of another
corporation, partnership, joint venture, trust or other enterprise, or (iii) who
was a director of a corporation which was a predecessor corporation of the
corporation or of another enterprise at the request of such predecessor
corporation.
(b) The corporation shall have the power, to the extent and in
the manner permitted by the Code, to indemnify each of its officers, employees
and agents against expenses (as defined in Section 317(a) of the Code),
judgments, fines, settlements, and other amounts actually and reasonably
incurred in connection with any proceeding (as defined in Section 317(a) of the
Code), arising by reason of the fact that such person is or was an officer,
employee or agent of the corporation. For purposes of this Section 3.16, an
"officer", "employee" or "agent" of the corporation includes any person (i) who
is or was an officer, employee or agent of the corporation, (ii) who is or was
serving at the request of the corporation as an officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise, or
(iii) who was an officer, employee or agent of the corporation which was a
predecessor corporation of the corporation or of another enterprise at the
request of such predecessor corporation.
(c) Expenses incurred in defending any civil or criminal action
or proceeding for which indemnification is required pursuant to Section 3.16(a)
shall be paid by the corporation in advance of the final disposition of such
action or proceeding upon receipt of an undertaking by or on behalf of the
indemnified party to repay such amount if it shall ultimately be determined that
the indemnified party is not entitled to be indemnified as authorized in this
Section 3.16. Expenses incurred in defending any civil or criminal action or
proceeding for which indemnification is permitted pursuant to Section 3.16(b)
may be paid by the corporation in advance of the final disposition of such
action or proceeding upon receipt of an undertaking by or on behalf of the
indemnified party to repay such amount if it shall ultimately be determined that
the indemnified party is not entitled to be indemnified as authorized in this
Section 3.16.
(d) The indemnification provided by this Section 3.16 shall not
be deemed exclusive of any other rights to which those seeking indemnification
may be entitled
13
<PAGE>
under any bylaw, agreement, vote of shareholders or disinterested directors or
otherwise, both as to action in an official capacity and as to action in another
capacity while holding such office, to the extent that such additional rights to
indemnification are authorized in the Articles of Incorporation.
(e) The corporation shall have the power to purchase and
maintain insurance on behalf of any person who is or was an agent of the
corporation against any liability asserted against or incurred by such person in
such capacity or arising out of such person's status as such, whether or not the
corporation would have the power to indemnify him against such liability under
the provisions of this Section 3.16.
(f) No indemnification or advance shall be made under this
Section 3.16, except where such indemnification or advance is mandated by law or
the order, judgment or decree of any court of competent jurisdiction, in any
circumstance where it appears:
(1) That it would be inconsistent with a provision of the
Articles of Incorporation, these Bylaws, a resolution of the shareholders or an
agreement in effect at the time of the accrual of the alleged cause of the
action asserted in the proceeding in which the expenses were incurred or other
amounts were paid, which prohibits or otherwise limits indemnification; or
(2) That it would be inconsistent with any condition
expressly imposed by a court in approving a settlement.
Section 3.17 TRANSACTIONS BETWEEN CORPORATIONS AND DIRECTORS.
(a) No contract or other transaction between the corporation and
one or more of its directors, or between the corporation and any corporation,
firm or association in which one or more of its directors has a material
financial interest, is either void or voidable because such director or
directors or such other corporation, firm or association are parties or because
such director or directors are present at the meeting of the Board of Directors
or a committee thereof which authorizes, approves or ratifies the contract or
transaction, if:
(1) the material facts as to the transaction and as to such
director's interest are fully disclosed or known to the shareholders and such
contract or transaction is approved in good faith by the affirmative vote of a
majority of the shares entitled to vote represented at a duly held meeting at
which a quorum is present or by the written consent of shareholders, with the
shares owned by the interested director or directors not being entitled to vote
thereon;
(2) the material facts as to the transaction and as to such
director's interest are fully disclosed or known to the Board of Directors or
committee, and the Board of Directors or committee authorizes, approves or
ratifies the contract or transaction in good faith by a vote sufficient without
counting the vote of the interested director or directors
14
<PAGE>
and the contract or transaction is just and reasonable as to the corporation at
the time it is authorized, approved or ratified; or
(3) as to contracts or transactions not approved as
provided in paragraph (a) or (b) of this subdivision, the person asserting the
validity of the contract or transaction sustains the burden of proving that the
contract or transaction was just and reasonable as to the corporation at the
time it was authorized, approved or ratified.
(b) No contract or other transaction between a corporation and
any corporation or association of which one or more of its directors are
directors is either void or voidable because such director or directors are
present at the meeting of the Board of Directors or a committee thereof which
authorizes, approves or ratifies the contract or transaction, if:
(1) The material facts as to the transaction and as to such
director's other directorship are fully disclosed or known to the Board of
Directors or committee, and the Board of Directors or committee authorizes,
approves or ratifies the contract or transaction in good faith by a vote
sufficient without counting the vote of the common director or directors or the
contract or transaction is approved by the shareholders (Section 153) of the
General Corporation Law in good faith; or
(2) As to contracts or other transactions not approved as
provided in paragraph (1) of this subdivision, the contract or transaction is
just and reasonable as to the corporation at the time it is authorized, approved
or ratified.
This subsection (b) does not apply to contracts or transactions
covered by subsection (a).
(c) A mere common directorship does not constitute a material
financial interest within the meaning of subsection (a) of this Section 3.17. A
director is not interested within the meaning of subsection (a) of this
Section 3.17 in a resolution fixing the compensation of another director as a
director, officer or employee of the corporation, notwithstanding the fact that
the first director is also receiving compensation from the corporation.
(d) Interested or common directors may be counted in determining
the presence of a quorum at a meeting of the Board of Directors or a committee
thereof which authorizes, approves or ratifies a contract or transaction.
ARTICLE IV
OFFICERS
Section 4.1 OFFICERS. The officers of the corporation shall be a
President, a Secretary and a Chief Financial Officer. The corporation may also
have, at the discretion of the Board of Directors, a Chairman of the Board, one
or more Vice Presidents, one or more Assistant Secretaries, one or more
Assistant Treasurers and such other officers as may be
15
<PAGE>
appointed in accordance with the provisions of Section 4.3 of this article. Any
number of offices may be held by the same person.
Section 4.2 ELECTION. The officers of the corporation, except such
officers as may be appointed in accordance with the provisions of Section 4.3 or
Section 4.5 of this article, shall be chosen annually by the Board of Directors,
and each shall hold his office until he shall resign or shall be removed or
otherwise disqualified to serve, or his successor shall be elected and
qualified.
Section 4.3 SUBORDINATE OFFICERS, ETC. The Board of Directors may
appoint, and may empower the Chairman of the Board, if there be such an officer,
or the President, to appoint such other officers as the business of the
corporation may require, each of whom shall hold office for such period, have
such authority and perform such duties as are provided in the Bylaws or as the
Board of Directors may from time to time determine. Any appointment of an
officer shall be evidenced by a written instrument filed with the secretary of
the corporation and maintained with the corporate records.
Section 4.4 REMOVAL AND RESIGNATION. Subject, in each case, to the
rights, if any, of an officer under any contract of employment, any officer may
be removed, either with or without cause, by the Board of Directors at any
regular or special meeting thereof, or, except in case of an officer chosen by
the Board of Directors, by any officer upon whom such power of removal may be
conferred by the Board of Directors.
Any officer may resign at any time by giving written notice to the
Board of Directors or to the President or to the Secretary of the corporation,
without prejudice, however, to the rights, if any, of the corporation under any
contract to which such officer is a party. Any such resignation shall take
effect at the date of the receipt of such notice or at any later time specified
therein; and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
Section 4.5 VACANCIES. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause shall be filled in the
manner prescribed in these Bylaws.
Section 4.6 CHAIRMAN OF THE BOARD. The Chairman of the Board, if
there shall be such an officer, shall be the chief executive officer of the
corporation and shall, subject to the control of the Board of Directors, have
general supervision, direction and control of the officers of the corporation.
He shall, if present, preside at all meetings of the Board of Directors and
exercise and perform such other powers and duties as may be from time to time
assigned to him by the Board of Directors or prescribed by these Bylaws.
Section 4.7 PRESIDENT. Subject to such supervisory powers, if any,
as may be given by the Board of Directors to the Chairman of the Board, if there
be such an officer, the President shall be the chief operating officer of the
corporation and shall, subject to the control of the Board of Directors, have
general supervision, direction and control of the business of the corporation.
He shall preside at all meetings of the shareholders and, in the absence of
16
<PAGE>
the Chairman of the Board, or if there be none, at all meetings of the Board of
Directors. He shall have the general powers and duties of management usually
vested in the office of the President of a corporation, and shall have such
other powers and duties as may be prescribed by the Board of Directors or the
Bylaws.
Section 4.8 VICE PRESIDENT. In the absence or disability of the
President, the Vice Presidents, if any, in order of their rank as fixed by the
Board of Directors or, if not ranked, the Vice President designated by the Board
of Directors, shall perform all the duties of the President, and when so acting
shall have all the powers of, and be subject to all the restrictions upon, the
President. The Vice Presidents shall have such other powers and perform such
other duties as from time to time may be prescribed for them respectively by the
Board of Directors or these Bylaws, or as the Chief Executive Officer may from
time to time delegate.
Section 4.9 SECRETARY.
(a) CORPORATE RECORDS. The Secretary shall keep or cause to be
kept, at the principal executive office and such other place as the Board of
Directors may direct, the seal of the corporation, copies of the Articles of
Incorporation and Bylaws of the corporation, a book of minutes of actions taken
at all meetings of shareholders, the Board of Directors and committees of the
Board of Directors with the time and place of holding, whether regular or
special, and, if special, how authorized, the notice given, the names of those
present at directors' meetings, the number of shares present or represented at
shareholders' meetings, and the proceedings thereof.
(b) SHARE REGISTER. The Secretary shall keep, or cause to be
kept, at the principal executive office or at the office of the corporation's
transfer agent, a share register, or a duplicate share register, showing the
names of the shareholders and their addresses, the number and classes of shares
held by each, the number and date of certificates issued for the same, and the
number and date of cancellation of every certificate surrendered for
cancellation.
(c) OTHER DUTIES. The Secretary shall give, or cause to be
given, notice of all the meetings of the shareholders and of the Board of
Directors required by the Bylaws or by law to be given, and he shall keep the
seal of the corporation in safe custody, and shall have such other powers and
perform such other duties as may be prescribed by the Board of Directors or by
the Bylaws.
Section 4.10 CHIEF FINANCIAL OFFICER.
(a) BOOKS OF ACCOUNT. The Chief Financial Officer of the
corporation shall keep and maintain, or cause to be kept and maintained,
adequate and correct accounts of the properties and business transactions of the
corporation, and shall send or cause to be sent to the shareholders of the
corporation such financial statements and reports as are by law or these Bylaws
required to be sent to them. The books of account shall at all reasonable times
be open to inspection by any director.
17
<PAGE>
(b) OTHER DUTIES. The Chief Financial Officer shall deposit all
monies and other valuables in the name and to the credit of the corporation with
such depositaries as may be designated by the Board of Directors. The Chief
Financial Officer shall disburse the funds of the corporation as may be ordered
by the Board of Directors, shall render to the President and directors, whenever
they request it, an account of all of his transactions as chief financial
officer and of the financial condition of the corporation, and shall have such
other powers and perform such other duties as may be prescribed by the Board of
Directors or the Bylaws.
ARTICLE V
GENERAL CORPORATE MATTERS
Section 5.1 RECORD DATE.
(a) WHEN FIXED BY BOARD OF DIRECTORS. The Board of Directors
may fix a time in the future as a record date for the determination of the
shareholders entitled to notice of and to vote at any meeting of shareholders or
entitled to give consent to corporate action in writing without a meeting, to
receive any report, to receive any dividend or distribution, or any allotment of
rights, or to exercise rights in respect to any change, conversion, or exchange
of shares. The record date so fixed shall be not more than sixty (60) days nor
less than ten (10) days prior to the date of any meeting, nor more than
sixty (60) days prior to any other event for the purposes of which it is fixed.
When a record date is so fixed, only shareholders of record at the close of
business on that date are entitled to notice of and to vote at any such meeting,
to give consent without a meeting, to receive any report, to receive a dividend,
distribution, or allotment of rights, or to exercise the rights, as the case may
be, notwithstanding any transfer of any shares on the books of the corporation
after the record date, except as otherwise provided in the Articles of
Incorporation or these Bylaws.
(b) WHEN NOT FIXED BY BOARD OF DIRECTORS. In the event no
record date is fixed by the Board of Directors:
(1) The record date for determining the shareholders
entitled to notice of or to vote at a meeting of shareholders shall be at the
close of business on the business day next preceding the day on which notice is
given or, if notice is waived, at the close of business on the business day next
preceding the day on which the meeting is held.
(2) The record date for determining shareholders entitled
to give consent to corporate action in writing without a meeting, when no prior
action by the Board of Directors has been taken, shall be the day on which the
first written consent is given.
(3) The record date for determining shareholders for any
other purpose shall be at the close of business on the date on which the Board
of Directors adopts the resolution relating thereto, or the sixtieth day prior
to the date of such other action, whichever is later.
18
<PAGE>
Section 5.2 INSPECTION OF CORPORATE RECORDS.
(a) BY SHAREHOLDERS. The accounting books and records, the
record of shareholders, and minutes of proceedings of the shareholders and the
Board of Directors and committees of the Board of Directors of this corporation
and any subsidiary of this corporation shall be open to inspection upon the
written demand on the corporation of any shareholder or holder of a voting trust
certificate at any reasonable time during usual business hours, for a purpose
reasonably related to such holder's interests as a shareholder or as the holder
of such voting trust certificate. Such inspection by a shareholder or holder of
a voting trust certificate may be made in person or by agent or attorney, and
the right of inspection includes the right to copy and make extracts.
(b) BY DIRECTORS. Every director shall have the absolute right
at any reasonable time to inspect and copy all books, records and documents of
every kind and to inspect the physical properties of the corporation. Such
inspection by a director may be made in person or by agent or attorney and the
right of inspection includes the right to copy and make extracts.
Section 5.3 MAINTENANCE AND INSPECTION OF BYLAWS. The corporation
shall keep at its principal executive office, or if its principal executive
office is not in the State of California, at its principal business office in
this state, the original or a copy of the Bylaws as amended to date, which shall
be open to inspection by the shareholders at all reasonable times during office
hours. If the principal executive office of the corporation is outside the
State of California and the corporation has no principal business office in this
state, the Secretary shall, upon the written request of any shareholder, furnish
to that shareholder a copy of the Bylaws as amended to date.
Section 5.4 ANNUAL AND OTHER REPORTS. The Board of Directors of the
corporation shall cause an annual report to be sent to the shareholders at least
fifteen (15) days prior to the annual meeting of shareholders but not later than
one hundred twenty (120) days after the close of the fiscal year in accordance
with the provisions of the General Corporation Law.
Section 5.5 CHECKS, DRAFTS, ETC. All checks, drafts or other orders
for payment of money, notes or other evidences of indebtedness, issued in the
name of or payable to the corporation, shall be signed or endorsed by such
person or persons and in such manner as, from time to time, shall be determined
by resolution of the Board of Directors.
Section 5.6 CONTRACTS, ETC., HOW EXECUTED. The Board of Directors,
except as in the Bylaws otherwise provided, may authorize any officer or
officers, agent or agents, to enter into any contract or execute any instrument
in the name of and on behalf of the corporation, and such authority may be
general or confined to specific instances; and, unless so authorized or ratified
by the Board of Directors or within the agency power of an officer, no officer,
agent or employee shall have any power or authority to bind the corporation by
any contract or engagement or to pledge its credit or to render it liable for
any purpose or to any amount.
19
<PAGE>
Section 5.7 CERTIFICATE FOR SHARES. Every holder of shares in the
corporation shall be entitled to have a certificate signed in the name of the
corporation by the Chairman of the Board or the President or a Vice President
and by the Chief Financial Officer or an Assistant Treasurer or the Secretary or
an Assistant Secretary, certifying the number of shares and the class or series
of shares owned by the shareholder. Any of the signatures on the certificate
may be a facsimile. In case any officer, transfer agent or registrar who has
signed or whose facsimile signature has been placed upon a certificate shall
have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the corporation with the same effect
as if such person were an officer, transfer agent or registrar at the date of
issue.
Section 5.8 LOST, STOLEN OR DESTROYED CERTIFICATES. No new
certificates for shares shall be issued to replace an old certificate unless the
latter is surrendered and cancelled at the same time; provided, however, that
the Board of Directors or the President and any Vice President may, however, in
case any certificate for shares is lost, stolen, mutilated or destroyed,
authorize the issuance of a new certificate in lieu thereof, upon such terms and
conditions, including reasonable indemnification of the corporation, as the
Board of Directors or the President or any Vice President shall determine. In
the event of the issuance of a new certificate, the rights and liabilities of
the corporation, and of the holders of the old and new certificates, shall be
governed by the relevant provisions of the California Commercial Code.
Section 5.9 REPRESENTATION OF SHARES OF OTHER CORPORATIONS. The
Chairman of the Board, the President or any Vice President, or any other person
authorized by resolution of the Board of Directors or by any of the foregoing
designated officers, are authorized to vote, represent and exercise on behalf of
this corporation all rights incident to any and all shares of any other
corporation or corporations standing in the name of this corporation. The
authority herein granted to said officers to vote or represent on behalf of this
corporation any and all shares held by this corporation in any other corporation
or corporations may be exercised either by such officers in person or by any
other person authorized so to do by proxy or power of attorney duly executed by
these officers.
Section 5.10 CONSTRUCTION AND DEFINITIONS. Unless the context
otherwise requires, the general provisions, rules of construction and
definitions contained in the General Corporation Law of California shall govern
the construction of these Bylaws. Without limiting the generality of the
foregoing, the masculine gender includes the feminine and neuter, the singular
number includes the plural and the plural number includes the singular, and the
term "person" includes a corporation as well as a natural person.
ARTICLE VI
AMENDMENTS
Section 6.1 POWER OF SHAREHOLDERS. New bylaws may be adopted or
these Bylaws may be amended or repealed by the affirmative vote or written
consent of at least two-thirds of the outstanding shares entitled to vote
thereon, except as otherwise provided by law or by the Restated Articles of
Incorporation.
20
<PAGE>
Section 6.2 POWER OF DIRECTORS. Subject to the right of shareholders
as provided in Section 6.1 of this Article VI to adopt, amend or repeal bylaws,
bylaws may be adopted, amended or repealed by the Board of Directors; provided,
however, that any alteration, amendment, supplement or repeal of the bylaws
contained in Sections 2.3, 2.8, 2.11, 3.3, 6.1 or 6.2 shall require the
affirmative vote of at least two-thirds of the outstanding shares of the capital
stock of the corporation entitled to vote (including the affirmative vote of at
least two-thirds of the outstanding shares of any class or series of capital
stock of the corporation entitled to vote separately).
21
<PAGE>
CERTIFICATE OF SECRETARY
I, the undersigned, do hereby certify:
1. That I am the duly elected and acting Secretary of Keystone
Automotive Industries, Inc., a California corporation; and
2. That the foregoing Bylaws, comprising 21 pages, including this
page, (i) constitute the Bylaws of said corporation as duly adopted by action of
the Board of Directors and the shareholders of the corporation duly taken on
April 17, 1996, and (ii) are in full force and effect and have not been modified
or rescinded at the date hereof.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the
seal of said corporation this seventeenth day of April, 1996.
/s/ Al A. Ronco
__________________________________
Al A. Ronco
22
